How Can a
Person Change a Will?
If a will is valid, it is
effective until it is
changed, revoked, destroyed,
or invalidated by the
writing of a new will.
Changes or additions to an
otherwise acceptable will
can be most easily
accomplished by adding a
codicil. A codicil is a
document amending the
original will, with equally
binding effect. Therefore,
a codicil must be
executed using the same
formality as the original
will. Wills cannot be
changed by simply crossing
out existing language or
adding new provisions,
because those changes do not
comply with the formal
requirements of will
execution.
Changes to an individual's
personal property may prompt
a change to an existing
will. Although many states
allow a will to specify that
personal property (property
other than money and real
estate) is to be distributed
in accordance with
instructions provided in a
separate document, North
Carolina is not one of those
states. A document in
existence at the time a will
or codicil is executed may
be incorporated by reference
and have effect. But if the
intent is to continuously
update a “memorandum” or
“letter” after the will is
executed and have the
updated document be of legal
effect, it will not work in
North Carolina. That
being said, wills are
often drafted that refer to
a statement or a memorandum
that is a list of personal
property the decedent wishes
for the executor to
distribute in a certain
manner (Grandma’s china to
Sue, Grandpa’s shotgun to
Ned). Many individuals do
not wish to “clutter up” an
already lengthy document (a
tax planning will can easily
run 30 or more pages) with
relatively minor items that
may change over time. Such
lists and statements are
useful as long as the client
understands that the list
might be morally persuasive
to the Executor and
Beneficiaries, but the list
will have little authority
beyond that. I suggest that
if certain items are
important enough and may be
the subject of contention,
list them in the will.
An outdated will may not
achieve its original goals
because its underlying
assumptions have changed.
Additionally, changes in
probate and tax law may
change the effectiveness of
certain provisions. This
is especially true as tax
law changes accelerate.
What may have been sound tax
planning a few years ago
could be disastrous now.
If a will is based on
outmoded circumstances, for
example if a chosen devisee
has died or has alienated
the testator, the probate
period may be extended as
the court determines how to
construe the old
provisions. Wills should be
reviewed at least every two
years, as well as upon major
life changes such as births,
deaths, marriages or
divorces, and major shifts
in a testator's property.
Because state law governs
wills, if a testator moves
to another state, the will
should be reviewed for
compliance with the new
state's laws. If you have
recently moved to North
Carolina, please call us to
make arrangements to review
your estate planning
documents.
As long as the testator is
mentally competent, his or
her will can be revoked
entirely without replacement
by a new document. A
testator can revoke a will
by intentionally destroying,
obliterating, burning, or
tearing the will. If the
will was executed in
multiple originals, or if
additional copies exist,
those should be treated in
the same fashion. If
undertaken, however, the
testator would be wise to
have the revocation
witnessed and recorded to
avoid future contentions
that the will is still
valid, but has been lost.
A word of caution: Revoking
a will without preparation
of a new will result in an
intestacy if you die before
preparing a new will.
Serious problems can result
from an Intestacy. Please
see discussion at
Intestacy: When You Die
Without a Will - Why to
Avoid It.
